Application by Benjamin Nuttall re General Retail Industry Award 2020
[2025] FWC 2330
•12 AUGUST 2025
| [2025] FWC 2330 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Application by Benjamin Nuttall re General Retail Industry Award 2020
(AM2024/42)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 12 AUGUST 2025 |
Application to vary the General Retail Industry Award 2020 – clause 11 (casual employees) – application for an order requiring production of documents (Form F52) by various retail supermarkets – application refused.
On 22 November 2024, Rick Nuttall, as representative of his son, Benjamin Nuttall (who was under the age of 18 at the time of filing), filed an application to vary the General Retail Industry Award 2020[1] (Award). The application seeks, in summary, variations to clause 11 of the Award to:
·increase the minimum engagement period for casual employees who are not full-time secondary school students from three hours to 4.5 hours;
·include a requirement for there to be a balance of shifts provided between casual employees according to availability and seniority, in order to avoid discrimination;
·require employers to make ‘live’ rosters available to casual staff to ensure transparency in rostering and help eliminate inequitable rostering practices; and
·add a ‘minimum work guarantee’ of two shifts a week once a casual employee has completed six months’ continuous service.
The grounds of the application make it apparent that the genesis of the application lies in particular grievances relating to the casual employment of Mr Nuttall Jr in a supermarket — in particular, an allegation that, having been employed for two years since the age of 15, he has had his allocated shifts reduced in favour of other casual employees who are younger than him.
The application was the subject of an initial directions hearing on 13 January 2025. Mr Nuttall Sr appeared for the applicant. During the directions hearing, the following exchange occurred:[2]
JUSTICE HATCHER: Mr Nuttall, today’s hearing is for the purpose of making directions for the determination of the applicant, and I should indicate that the usual course is to require the applicant to file an outline of submissions and evidence in support of the application.
Just for your guidance I should indicate that the Retail Award is one which covers some thousands of employers and over a hundred thousand employees. So any case to vary the Retail Award is necessarily a major undertaking and would require evidence which deals with the circumstances not of just the applicant, but of the broad cross‑section of those covered by the award. In any event that’s the usual course. So are you in a position to file evidence and submissions in support of the application?
MR R NUTTALL: The only evidence I can provide is what my son is actually getting. I can obtain evidence of one other person who works for a different supermarket. Other than that you’re asking me to do something that’s far beyond my capability. I don’t know how one would be able to go about doing that.
JUSTICE HATCHER: Well, I understand that, Mr Nuttall, but I am just trying to explain to you that this award is a major instrument covering a huge proportion of employees in Australia, and that it would be unlikely that the Commission would vary the award, I would suggest to you, at all in the absence of evidence which goes to the circumstances of a significant cross section of those employees.
MR R NUTTALL: Well, this has not been brought to my attention prior by the Fair Work Commission, not by any means, and this is not really nice to be put in this position at this point to state that. The Fair Work Commission and maybe the union might need to be able to get involved and I would need time to get that done.
JUSTICE HATCHER: Mr Nuttall, if you want to do that we will allow that time. I should indicate this is the first occasion your application, or your son’s application has come on before the Commission, and that makes it now the appropriate time to explain these matters to you. But at the end of the day it’s your application and you can proceed with it as you see fit, but I am just trying to assist you by explaining to you the reality of what would be involved in an exercise like this.
MR R NUTTALL: Okay. So when you say a broad cross section what is the expectation of you for that? Like I mean how different employers do you want me to get evidence from? I mean - - -
JUSTICE HATCHER: Mr Nuttall, it’s not a matter for me to say what we want, it’s your application. All I am saying to you is that the prospects of you being able to persuade the Commission to vary the award in the major respects that you propose, and they’re not minor matters, they’re major, because a large proportion of employees in industry are casual employees, it will be necessary to mount a major effort to persuade the Commission to do that.
Now, at the end of the day if you want to proceed I will make directions and we will proceed, but I don’t want you to go ahead in ignorance of what realistically is involved in an exercise like this.
MR R NUTTALL: Okay. Well, I’m prepared to give it somewhat of a go, and if I don’t get any assistance by the union to be able to gather the information then I’m stuck at a hard place, aren’t I. So I would need that assistance by the union, and even by - because representatives of Coles and Woolworths are here, perhaps that they can do so too. Maybe they might be willing to provide some of this evidence. They’re not going to be prepared to give that to me directly, so I don’t know how that would work, but since they’re listening here maybe they could be involved in sharing their accounts of their employees under this circumstance.
JUSTICE HATCHER: Yes. Well, they’re here observing, they’re not here as participants at the hearing, so I don’t propose to ask them to respond to that. How long do you think you would need to take on board all these things, prepare your evidence, seek assistance from others, et cetera, et cetera?
MR R NUTTALL: Okay. Well, providing, and this is conditional, providing that the union, the Retail Employees Union, gets on board to gather that they would have to be guided by that, and I would suggest a few months perhaps.
Following the above exchange, the application was stood over until 18 February 2025 for the purpose of Mr Nuttall Sr making inquiries as to whether he could obtain any union support for his application. At the hearing on 18 February 2025, Mr Nuttall reported that he had been unable to garner union engagement in his matter, and said:[3]
… So this now presents a bit of a problem where there are no other means for me personally to be able to get that evidence that you require for the Commission of that award abuse. The unions won’t help and the employers certainly won’t be willing to give up that information to me. So I can’t really pull a rabbit out of my hat, so to speak. So as it stands, the Commission then provides the only possible means for me to gain the evidence that you require for that award abuse.
That’s why I’m asking the Fair Work Commission, by virtue of section 590 of the Fair Work Act to provide me with that authority under a limited scope, to contact larger employers and require from them to provide copies of all casual workers’ rosters in that workplace for designated periods from January 2022, and to detail the age of those workers at the time of the roster, and a statement detailing how the said rosters are made available to all casual workers within that workplace.
This will then enable me to collate the information and present the evidence to the Commission…
Later in the hearing, the following exchange occurred in relation to the proposition advanced by Mr Nuttall Sr:[4]
JUSTICE HATCHER: …what you need to do, there’s a form you need to fill out and file, called F52, orders for production. So you need to make an application for orders for production, which sets out in accordance with the form the precise details of the documents you want to be produced, and the persons you want to produce the documents.
MR R NUTTALL: Yes, sorry, can I just butt in there and ask the – do you want me to specifically name each and every employer that we want to go to on that list? Is that what you’re asking me to do?
JUSTICE HATCHER: That’s what you’re asking to do, Mr Nuttall. So there’s a power – the Commission has a power which it may or may not choose to exercise, to require a person which may include an incorporated employer to produce specified documents, but it’s up to you in the first instance to identify who are the persons who want to produce the documents, and specify the documents you want to be produced, so that the Commission has an understanding of what the order involves, and then the Commission can consider whether to make the order.
MR R NUTTALL: Okay. So then I will do that. Yes. Sure. That would be good.
JUSTICE HATCHER: I mean, I warn you, it sounds like to me that you’re asking for the production of documents relating literally to hundreds of thousands of employees.
MR R NUTTALL: No. No. Okay. Can we go to the point where I need to ask you how many instances of each award abuse is the Commission interested in to proceed forward with this matter? That’s the question that I need to understand.
JUSTICE HATCHER: Well, Mr Nuttall, I can’t tell you how to run the case. Your son has brought this application; it’s up to him and you to run the case. The only thing I’ve told you is that it would be unlikely that the Commission would vary an important provision of an award which covers hundreds of thousands of employees based on the evidence of one person. That is, you need to demonstrate, I think, that there’s a sectoral problem which requires rectification.
MR R NUTTALL: Yes.
JUSTICE HATCHER: Beyond that, it’s a matter for your assessment.
MR R NUTTALL: Okay. Yes. So I need to approach quite a number of employers. That’s what I intended to do, yes.
JUSTICE HATCHER: And I need to warn you that an order for production can’t be what’s called a fishing expedition. That is, seeking documents in the hope that you’ll find something.
The matter was subsequently stood over for two weeks to provide Mr Nuttall Sr with an opportunity to make his foreshadowed application for an order for production of documents under s 590 of the Fair Work Act 2009 (Cth) (FW Act).
On 20 February 2025, Mr Nuttall Sr filed an application for an order for production of documents dated 19 February 2025 in relation to this substantive application. The draft order attached to the application describes the documents sought as follows:
1.Copies of rosters for all casual employees at the specified workplace locations;- for the months of Feb + June + Oct of each year commencing 2022 to current. (Include employee names and shift days + shift hours)
2.On those Rosters, state the Age of Casual Workers in years + months for casual workers under 21 years & State ‘Adult’ for Casual Workers 21 years and over.
3.Provide a declaration, detailing;-
If / if not Casual worker pool rosters are made available to all casual workers within that
workplace location.
And if yes…
— State how this is done. (i.e. Hard Copies or Live Rosters etc..)
— State period of time those rosters are made available to Casual Staff
— State if / if not Casual Workers at your workplace, are able to freely refer back to
historical rosters without making requests to their employers.
Mr Nuttall Sr’s application seeks that an order for production of the above-described documents be directed to each of the following 58 supermarkets:
1.Woolworths, Beerwah, Queensland
2.Woolworths, Ormeau, Queensland
3.Woolworths, Maleny, Queensland
4.Woolworths, Morayfield, Queensland
5.Woolworths, Oxenford, Queensland
6.Woolworths, Cabramatta, New South Wales
7.Woolworths, Campbelltown, New South Wales
8.Woolworths, Bowral, New South Wales
9.Woolworths, Goulburn, New South Wales
10.Woolworths, Sunshine (Harvester Rd), Victoria
11.Woolworths, Shepparton, Victoria
12.Woolworths, Doncaster, Victoria
13.Woolworths, Moonee Ponds, Victoria
14.Woolworths, Seaford, South Australia
15.Woolworths, Midland, Western Australia
16.Fresh ‘n’ Save, Beerwah, Queensland
17.Fresh ‘n’ Save, Morayfield, Queensland
18.Fresh ‘n’ Save, Eagleby, Queensland
19.Fresh ‘n’ Save, Hervey Bay, Queensland
20.Fresh ‘n’ Save, Armidale, New South Wales
21.IGA, Maleny, Queensland
22.IGA, Ormeau, Queensland
23.IGA, Mt Cotton, Queensland
24.IGA, Noosa Junction, Queensland
25.IGA, Moss Vale, New South Wales
26.IGA, Doonside, New South Wales
27.IGA, Ringwood East, Victoria
28.IGA, Brunswick, Victoria
29.IGA, Northbridge, Western Australia
30.IGA, Newtown, New South Wales
31.IGA, Bentleigh East, Victoria
32.ALDI, Beerwah, Queensland
33.ALDI, Pimpama, Queensland
34.ALDI, Narre Warren, Victoria
35.ALDI, Kennington, Victoria
36.ALDI, Evanston, South Australia
37.ALDI, Camillo, Western Australia
38.ALDI, Dubbo, New South Wales
39.Coles, Caloundra, Queensland
40.Coles, Ormeau, Queensland
41.Coles, Morayfield, Queensland
42.Coles, Yarrabilba, Queensland
43.Coles, Burleigh Waters, Queensland
44.Coles, Goonellabah, New South Wales
45.Coles, Coffs Harbour, New South Wales
46.Coles, Green Hills, New South Wales
47.Coles, Penrith, New South Wales
48.Coles, Dandenong, Victoria
49.Coles, Campbellfield, Victoria
50.Coles, Werribee, Victoria
51.Coles, Greenacres, South Australia
52.Coles, Thornlie, Western Australia
53.Coles, High Wycombe, Western Australia
54.Drakes, Toowoomba, Queensland
55.Drakes, Caboolture, Queensland
56.Drakes, Wallaroo, South Australia
57.Drakes, Biggera Waters, Queensland
58.Drakes, Port Lincoln, South Australia.
The application specified the following reasons for seeking the production of the specified documents:
(1) Copies of Casual Pool Rosters
To provide patterns of shift allocations + shift hours for all casual workers within
predetermined time periods at random workplaces + across juvenile and adult age groups.
(2) Ages of Workers
To provide clarity in the balance of shift allocations + shift hours for younger workers as they progress in age and compare these to adult workers.
(3) Transparency of Rosters
Determine if all Casual Workers are able to access Rosters in that workplace – to compare equity of rostering hours + shift allocations + any necessity for changes to be sought.
The application contends that the documents sought will assist the Commission in reaching a decision on the following bases:
1. Copies of Casual Pool Rosters
Provision of casual workers shift allocation + shift hours will determine patterns at random workplaces across a major employer group (supermarkets) -AND- determine fairness of shift allocation + hours + equity across age groups and within the sub 21 years age group.
Such information is required to determine a variation of the award as per application.
2. Ages of Workers
Provision of workers’ ages on rosters will determine equity across age groups -AND- determine fairness of shift allocation + shift hours for junior workers as they progress in age through to adult wages. Such information is required to determine a variation of the award as per application.
3. Transparency of Rosters
Required employer declarations will reveal any lack of transparency in the provision of casual pool rosters across workplace peers. An element to determine a variation of the award as per application
Upon receipt of this application, I issued a direction that any party named in the proposed orders who opposed those orders being issued was to file submissions setting out their grounds of opposition by 19 March 2025. The following parties filed submissions opposing the application:
·Drake Supermarkets Pty Ltd
·Woolworths Group Limited
·ALDI Stores (A Limited Partnership)
·Coles Supermarkets Australia Pty Ltd
·Master Grocers Australia Ltd on behalf of
oIGA Brunswick
oIGA Maleny
oIGA Newtown
oIGA Bentleigh East
oIGA Ringwood East
oIGA Northbridge
oIGA Moss Vale
oIGA Mt Cotton
oFresh & Save Beerwah
oFresh & Save Morayfield
oFresh & Save Eagleby
oFresh & Save Hervey Bay
oFresh & Save Armidale
The parties that opposed the application did so on largely congruent grounds, including that:
·at least some of the documents sought are not relevant to the issues to be determined and/or would have to be created and then produced;
·the application does not disclose a forensic basis for obtaining the material, but is rather a ‘fishing expedition’;
·the volume of documents that they would be required to produce is oppressive;
·confidentiality concerns regarding the identity of individual casual employees and business operations weigh against the grant of the order;
·the public interest does not favour the grant of the order when another union-led application relating to junior rates of pay in the Award is on foot and Mr Nuttall Sr has advised that he has been unable to attract union engagement in the matter.
For the following reasons, I have determined not to grant the order for production sought on behalf of the applicant.
First, the proposed order for production would patently involve a fishing expedition. It is apparent that the application has been brought to address particular workplace grievances concerning Mr Nuttall Jr’s employment. Mr Nuttall Sr has made it clear that he has no evidence apart from that concerning his son and, perhaps, one other person, and the purpose of the order for production he seeks is to look for further evidence to make up for this deficiency. There is no apparent basis to consider that any of the documents he seeks will support the application. Mr Nuttall Sr is seeking the documents to explore whether there is in fact a supportable basis for a potential case that extends beyond Mr Nuttall Jr’s own circumstances rather than to support a case that is actually being advanced.[5] As the transcript discloses, Mr Nuttall Sr was put on notice that an application for an order for production which involved a fishing expedition would not be successful.
Second, I consider that the proposed order for production would be oppressive. It seeks rosters for every casual employee over 11 specified months from each of 58 retail supermarkets. The rosters that must be produced extend back to 2022. The age of each employee on the rosters must be identified, which presumably requires the addition of information to the existing roster documents that will likely have to be obtained from separate records. Further, the employers will not just have to produce documents but create new documents by way of making declarations that address four identified matters, at least some of which are vague and ill-defined.
In order to further progress this matter, I propose to make directions requiring the applicant to file his evidence and submissions by 7 October 2025, and then I will bring the matter back on for further directions on 14 October 2025. The directions and notice of listing are issued together with this decision. However, I make the observation, consistent with my earlier comments to the applicant during the proceedings on 13 January and 18 February 2025, that an application to vary a major modern award is not an appropriate vehicle to address an individual employee’s workplace grievance. The FW Act provides other avenues for recourse in that respect.
The applicant’s application for an order for production is dismissed.
PRESIDENT
Appearances:
R Nuttall for Benjamin Nuttall, the applicant.
R Bhatt for The Australian Industry Group.
A Lyons for Master Grocers Australia Limited.
I Booth for the Newsagents Association of NSW and ACT and the Australian Lottery and Newsagents Association.
Hearing details:
2025.
Sydney by video link using Microsoft Teams (report-back):
18 February.
Written submissions:
Drake Supermarkets: 19 March 2025.
Woolworths Group: 19 March 2025.
Coles Group: 19 March 2025.
Master Grocers Australia: 19 March 2025.
ALDI Stores: 19 March 2025.
[1] MA000004.
[2] Transcript, 13 January 2025 PNs 14–25.
[3] Transcript, 18 February 2025 PNs 57–59.
[4] Ibid PNs 68–78.
[5] See, eg, Esso Australia Pty Ltd v The Australian Workers’ Union & Ors [2017] FWCFB 2200 [6]; Woodside Energy Ltd v The Australian Workers’ Union [2022] FWCFB 168 [29].
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